Ashlar Golf Club Ltd v Blacktown City Council - [2004] NSWLEC 753

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Ashlar Golf Club Ltd v Blacktown City Council [2004] NSWLEC 753

PARTIES:
Ashlar Golf Club Ltd (Appl)
Blacktown City Council (Resp)

CASE NUMBER: 10796 of 2004

CATCH WORDS: Development Application

LEGISLATION CITED:

CORAM: McClellan CJ

DATES OF HEARING: 19 November 2004

EX TEMPORE DATE: 19/11/2004

LEGAL REPRESENTATIVES

T Howard (Barrister - Appl)
W R Ghioni (Sol - Appl)

T O'Connor (Sol - Resp)
Houston Dearn O'Connor (Sol - Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
McCLELLAN J
FRIDAY 19 NOVEMBER 2004
10796/04ASHLAR GOLF CLUB LTD v BLACKTOWN CITY COUNCIL

JUDGMENT

HIS HONOUR: This is an appeal by the Ashlar Golf Club Limited in relation to the refusal by Blacktown City Council of an application to erect a safety screen adjacent to, and out from, the tee of the fourteenth hole on the golf course.
The fourteenth hole is presently a par four dog leg left hole. It is not of excessive length, but is made challenging by the fact that it is a dog leg, the corner of which is substantially planted with trees, and the fairway designed with a bunker on the top of the corner, or close to the top of the corner, away from the tee. For the average golfer the hole would play as a genuine two shot par four. However, for the ambitious, strong and talented golfer there is a challenge to cut the dog leg, carry the trees, avoid the bunker, and be left with a wedge or short iron to the green. The right handed golfer, who are the majority of golfers, who takes on the challenge runs the risk of drawing the tee shot, which will carry it either into the trees, into an adjacent drainage canal, or, as has undoubtedly occurred in many cases, carrying the ball into neighbouring properties. Others, with less talent, may play an errant shot on the tee which out of the heel of the club or in some other way as a mishit, will take a more direct path into a neighbour’s property.
The evidence before me persuades me that the regularity with which golf balls have entered neighbouring properties confirms that there is a real safety and amenity issue.
The golf course has existed for many years, and I assume the current configuration of the fourteenth has been maintained over a lengthy period of time. The neighbouring properties are, I understand, developed on land which originally formed part of the golf course, which was sold some years ago now. The problem for those houses is created by the proximity of the lots to the fourteenth fairway and tee and also the configuration of the hole as a dog leg. Some years ago, the problem was partially addressed by the erection of a tall galvanised fence adjacent and out from the fourteenth tee. It is apparent from marks on that fence that it has been partially successful in restraining errant golf balls, but it is plain from the evidence before me that it has not been wholly successful.
In more recent times, the club has limited play from the fourteenth tee to the front portion of the tee and this appears to have had a significant beneficial effect. The neighbours report that the number of balls entering their properties has significantly diminished when the hole has been modified in this way. That modification has the effect of altering the angle of the tee shot to some extent and confining the ambition of some to cut the dog leg to the extent that they attempted from the rear of the tee. However, the efforts that have been made have not been entirely successful and the club has maintained a wish to continue the fourteenth hole in its original configuration.
There is evidence before me of work done by golf course consultants, suggesting a redesign of the hole in various ways which could alleviate the safety and amenity issues. The club itself has taken steps in relation to the matter and undertook the construction of a very significant barrier extending out from the existing metal fence. The construction extended to the point where three large telegraph type poles have been installed in the ground. However, consent had not been obtained from the council and as I understand the position, following submissions from a number of local people, the council intervened and the club stopped short of erecting the completed fence.
The present application seeks to complete the structure which has been partly erected. It provides for a fence supported on poles which will extend fifteen metres above the ground and for a length of forty metres.
I had a view of the golf course with the parties and also examined the situation from the surrounding streets. Generally the neighbours of the golf club with properties adjoining the club from Meig Place expressed concern about the proposed fence. They believe it will be an unacceptable vision intrusion into the amenity of their domestic dwellings, providing an uncharacteristic and substantial structure on the skyline and middle ground, which is presently unobstructed or contains a view of trees. Some of those neighbours will view the lower portions and more direct portions of the golf course through the existing metal fence. Many of those properties use their back yards or rear yards for outdoor living purposes and as they all front on to the bulb of a cul-de-sac, it can be readily appreciated that their rear yards provide the major outdoor amenity for the properties. A number of them have swimming pools.
I have listened carefully to the argument put by the club and the evidence of those who support the erection of the proposed fence. The position is that although a substantial structure the fence will not be an unreasonable visual intrusion for the neighbouring properties. I have also been directed to other locations where similar fencing has been erected, photographs of which have been tendered. I indicate, as the parties appreciate, that I am familiar with many protective fencing devices that have been installed on golf courses in the Sydney region.
The immediately adjoining properties, are, as I have indicated, domestic dwellings, erected on parcels of land, which although modest provide a considerable level of amenity to the occupants. The view from their yard areas is presently a pleasant view across the golf course, significantly of trees and of the open sky. For a number of the properties the proposed fence will represent a significant visual intrusion. The poles themselves which are already in place extending as they do fifteen metres into the air, provide a visual form entirely out of character with any other built form in the area. There are, in the streets, as one would expect in this area, wooden power poles, but these are of a height consistent with the existing tree canopy. The proposed fence will extend well beyond the visual envelope formed by that existing tree canopy.
I accept the complaint of the various persons who have indicated that from their own yard areas the proposed structure would be unacceptable. However, I also accept the real concerns of the neighbours who have received golf balls into their rear yards.
The Land and Environment Court does not have the jurisdiction of the Equity Division of the Supreme Court and there is no case in nuisance which could be prosecuted in this Court. Nevertheless, in considering the acceptability of the proposed fence it is relevant for me to carefully consider the benefits which it will bring to the neighbours. I am satisfied that for some neighbours, those benefits would be real and although it could not be concluded that, even with the fence in place, all golf balls would be excluded from neighbouring properties, a real benefit would follow.
Notwithstanding the intrusive visual impact of the proposal, if I was persuaded that there was no other reasonable alternative, the conclusion I have reached about this proposal may have been different. However, both in discussions on site and in material tendered before me, it is apparent that it is within the golf club’s power to make changes to the fourteenth hole, which would substantially ameliorate the impact of golf balls upon neighbouring properties and which would not require the erection of the very substantial fence which is now proposed.
Without discussing the options in detail, it is plain that the most extreme option would be the reduction of the hole from a par four to a par three hole which would virtually eliminate any potential problem for any of the neighbours and would not require the construction of the proposed fence. If the hole was not reduced to a par three it could be reconfigured in various ways which would not require the erection of the proposed fence to minimise the impact upon the adjoining neighbours.
Weighing all these matters, I have come to the conclusion that the application must be refused. This will have the consequence that the problems for the neighbours who are presently receiving golf balls will continue. It will be a matter for the club to identify how it should respond to that difficulty. However, in my opinion the size of the proposed structure and its serious deleterious impact upon the amenity of the adjoining properties has the consequence that it should not be approved.
Accordingly, the order of the Court is that the development application of the Ashlar Golf Club is refused. The exhibits may be returned.

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